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State v Donumaiwai [2024] FJHC 426; HAC324.2022 (9 July 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Crim. Case No: HAC 324 of 2022


STATE


v


AKUILA DONUMAIWAI


Counsel: Mr. Z. Zunaid for the State
Ms. A. Dean for 3rd Accused



Date of Hearing: 21st to 22nd August 2023
Date of Closing Submission: 20th September 2023
Date of Judgment: 9th July 2024


JUDGMENT


  1. Akuila Donumaiwai, the accused, is charged with the offence of Receiving contrary to section 306(1) of the Crimes Act 2009 under Count 3 of the Information dated 5 October 2022 by the Director of Public Prosecutions laid out as follows:

COUNT ONE


Statement of Offence


AGGRAVATED BURGLARY: Contrary to section 313(1)(a) of the Crimes Act, 2009.


Particulars of Offence


PITA SALAUNEUNE & ALIVERETI COKANASIGA, in the company of each other, on the 30th day of August, 2022 at Nausori in the Eastern Division, entered into the property of MAUREEN EASTGATE & ALBERT HENRY EASTGATE, as trespassers with intent to commit theft.


COUNT TWO


Statement of Offence


THEFT: Contrary to section 291(1) of the Crimes Act, 2009.


Particulars of Offence


PITA SALAUNEUNE & ALIVERETI COKANASIGA, in the company of each other, on the 30th day of August, 2022 at Nausori in the Eastern Division, dishonestly appropriated 2x binoculars, 1x Acer laptop with bag, 1x Sketchers brand pair of canvas, 1x Asics brand pair of canvas, 1x orange in colour ladies bag and $14,140.00 cash (New Zealand Dollars), the properties of MAUREEN EASTGATE & ALBERT HENRY EASTGATE with the intention of permanently depriving MAUREEN EASTGATE & ALBERT HENRY EASTGATE of the said properties.


COUNT THREE


Statement of Offence


RECEIVING: Contrary to section 306(1) of the Crimes Act, 2009.


Particulars of Offence


AKUILA DONUMAIWAI, between the 30th day of August – 6th day of September, 2022 at Nausori in the Eastern Division, dishonestly received approximately $4,800.00 cash (New Zealand Dollars), knowing or believing the said property to be stolen.


COUNT FOUR


Statement of Offence


RECEIVING: Contrary to section 306(1) of the Crimes Act, 2009.


Particulars of Offence


JOSEVA ULUDOLE, between the 30th day of August – 6th day of September, 2022 at Nausori in the Eastern Division, dishonestly received $600.00 cash (Fijian Dollars), 1x Acer laptop, 1x pair of canvas and $250.00 cash (New Zealand Dollars), knowing or believing the said property to be stolen.


  1. Akuila Donumaiwai, the accused, pleaded not guilty to Count 3, trial commenced on 21 August 2023 and prosecution closed its case on 22 August 2023 having called PW1 DC.5475 Peceli Galuvakadua who had interviewed the accused under caution, and tendered the following prosecution exhibits (PE):
  2. Defence counsel Ms. A. Dean then made a verbal submission of no case to answer and responded to by prosecutor Mr. Zunaid, and on 29 August 2023 this Court ruled a case to answer, and accorded the accused his right to remain silent, provide sworn testimony, and/or call other witnesses in his defence in accordance with section 231(2)(a)-(d) of the Criminal Procedure Act 2009.
  3. The accused via his Legal Aid counsel opted to remain silent and not call other witness.
  4. This is the Court’s judgment.

Elements of Receiving


  1. The offence of Receiving is contrary to section 306(1) of the Crimes Act 2009 which state:

306.-(1) A person commits a summary offence if he or she dishonestly receives stolen property, knowing or believing the property to be stolen. ...

(2) For the purposes of this Act, an offence against sub-section (1) is to be known as the offence of receiving.


  1. The elements for the offence of Receiving are:
  2. The onus is on the prosecution to prove beyond reasonable doubt the aforesaid physical and fault elements for the offence of Receiving in order for the accused Akuila Donumaiwai to be held culpable as per Count 3 of the Information.

Dishonest


  1. ‘Dishonest’ is defined under section 290 of the Crimes Act 2009 as:

290. For the purposes of this Part [16 – Offences against property], dishonest

means –

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of

ordinary people.


Doctrine of recent possession


  1. The Fiji Court of Appeal in Allen v State [2024] FJCA 44; AAU 122.2019 (28 February 2024) per Mataitoga, RJA, held at paragraph 8:

[8] For the doctrine of recent possession to operate certain prerequisites should be satisfied namely:

i) That the accused was in possession of the property;

ii) That the property was positively identified by the complainant;

iii) That the property was recently stolen;

iv) That there are no co-existing circumstances, which point to any other person as having been in possession: Boila v State [2021] FJCA 184; AAU 049.2015 (4 May 2021) and Batimudramudra v State [2021] FJCA 96; AAU113.2015 (27 May 2021).


  1. In Batimudramudra v State [2021] FJCA 96; AAU 113.2015 (27 May 2021), Prematilaka, JA, at paragraphs 27 to 31, laid out the manner in which the doctrine of recent possession is applied in pertinent cases stating:

[27] The doctrine of recent possession may be applied in appropriate cases [see David Kio v R [Unreported Criminal Appeal Case No. 11 of 1977; Davis CJ; at page 3]. In Trainer v R [1906] HCA 50; (1906) 4 CLR 126 Griffith CJ explained the doctrine of recent possession at page 132:


'It is a well-known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen according to the circumstances of the case.’


Prima facie the presumption is that he stole it himself, but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it.' (emphasis added)’


[28] R v Langmead [1864] EngR 47; (1864) Le & Ca 427; 169 ER 1459 Blackburn J stated at pages 441 and 1464 respectively:


'I do not agree ... that recent possession is not as vehement evidence of receiving as of stealing. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.'


[29] Dickson C.J. and McIntyre, Le Dain and La Forest JJ. said in R v Kowlyk [1988] 2 SCR 59:


“The doctrine of recent possession may be succinctly stated. Upon proof of the unexplained possession of recently stolen property, the trier of fact may-but not must-draw an inference of guilt of theft or of offences incidental thereto. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offence. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. The doctrine will not apply when an explanation is offered which might reasonably be true even if the trier of fact is not satisfied of its truth.”


[30] In Beumazi Ndoro Chaila - Appellant and Republic - Respondent [2016] eKLR the Court of Appeal at Mombasa (Kenya) summarized the following principles relating to ‘recent possession’:


‘............The inference is drawn from possession of recently stolen property rather than recently taking possession of stolen property.


However, before the court can draw the inference from the accused’s possession of recently stolen property, it must be satisfied of five matters: i. That the accused was in possession of the property; ii. That the property was positively identified by the complainant; iii. That the property was recently stolen; iv. That the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and the circumstances of the case, recent; v. That there are no co-existing circumstances, which point to any other person as having been in possession and;


The doctrine being a rebuttal presumption of facts is rebuttable with an accused being called upon to offer an explanation, which if he fails to do an inference is drawn that he either stole or is guilty receiver.


In proving possession, the prosecution must establish that the accused had possession of the property in question, i.e. had custody of or control over that property and intended to have custody or exercise control over it. The fact that a third party has physical possession of the property does not mean it could not have been possessed by the accused. In this regard, the prosecution does not need to prove that the accused was actually caught with the property in his or her possession. It is sufficient to prove that the accused possessed the property at the relevant time.


Again, the term “recent” depends, as already stated, on the nature of the property. Frequently circulated property such as bank notes remain “recently stolen” for a shorter period than less frequently traded objects like cars, books, clothes, electronic appliances etc.’

[31] In Timo v State [2019] FJSC 1; CAV0022.2018 (25 April 2019):


‘[17] .......Indeed, this was a classic example of the application of that strand of circumstantial evidence commonly called “recent possession”. In cases where a defendant is found to have been in possession of property which has been stolen very recently, so that it can be said that he was in recent possession of it such that it plainly calls for an explanation from him about how he came to be in possession of it, and either no explanation is given, or such explanation as is given is untrue, the court is entitled to infer, looking at all the relevant circumstances, that the defendant stole the property in question or was a party to its theft. And if the property had been stolen in a burglary or a robbery, the court is entitled to infer, again looking at all the relevant circumstances, that the defendant took part in the burglary or the robbery in which the property was stolen: see, for example, Blackstone’s Criminal Practice 2016, paras F.63-F.64, and applied in Fiji in Wainiqolo v The State [2006] FJCA 49 and Rokodreu v The State [2018] FJCA 209.’


Application of the doctrine of recent possession

  1. The prosecution and defence agree that the accused Akuila Donumaiwai received approximately NZD$4,800 cash from Pita Salauneune and Alivereti Cokanasiga. This is substantiated by the i) Admitted Facts filed on 22 August 2023; and ii) Caution interview statement of Akuila Donumaiwai tendered as PEs’ 1, 2, 3 and 4.
  2. The disputed issue in this case, as pursued by the Defence, is that the accused Akuila Donumaiwai lacked the requisite mens rea for the offence of Receiving because he did not know or believe that the money (i.e. approximately NZD$4,800) he received from Pita Salauneune and his son-in-law Alivereti Cokanasiga was stolen.
  3. According to the English Transcript of Akuila Donumaiwai’s caution interview (PE4), DC.5475 Peceli asked Akuila Donumaiwai, ‘[d]o you know when they came to you that they stole the items and cash?’, to which Akuila Donumaiwai responded, ‘I asked them where they got the money from, they said they bought it from a house in Naitasiri, that’s all they said.’
  4. Having carefully considered the entire prosecution evidence, and based on the doctrine of recent possession, I find as follows:
    1. That the doctrine of recent possession is applicable in this instant. Akuila Donumaiwai was in possession of approximately NZD$4,800 which was recently stolen, and there are no co-existing circumstances which point to any other person as having been in possession of the said money. The positive identification of the said money by the complainant would have been a futile exercise since Akuila Donumaiwai had exchanged the NZ currency to Fijian currency.
    2. That Akuila Donumaiwai has not offered an explanation, to the satisfaction of this Court, to rebut the presumption arising from the doctrine of recent possession.
    1. Based on a) & b) above, I therefore draw the inference that Akuila Donumaiwai is guilty of receiving the stolen money in NZ currency.
  5. For the reasons noted above, I find that the prosecution has proved beyond reasonable doubt the actus reus and mens rea for the offence of Receiving, and therefore the guilt of Akuila Donumaiwai.
  6. I hereby convict Akuila Donumaiwai of the offence of Receiving contrary to section 306(1) of the Crimes Act 2009 as per Count 3 of the Information dated 5 October 2022 by the Director of Public Prosecutions.
  7. Thirty (30) days to appeal to the Fiji Court of Appeal.

..........................................................
Hon. Justice P. K. Bulamainaivalu
Puisne Judge


At Suva
9 July 2024


Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for 3rd Accused

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